68 Ky. 206 | Ky. Ct. App. | 1868
delivered toe opinion oe the court:
By an agreement of the parties, these two appeals, one of them seeking the reversal of a judgment of the Jefferson Court of Common Pleas, and the other the reversal of a decree of the Louisville Chancery Court, have been heard together, and the questions presented on both records will be considered with reference to the order in which the litigation progressed in the courts below.
On the 5th day of October, 1866, the appellee brought his action in the court of common pleas against the appellant, Joseph Slater, for five thousand dollars damages, for assaulting the plaintiff and stabbing him with a knife, alleged to have been committed on the 23d day
An execution issued on said judgment having been returned by the sheriff “ no property found,” the appellee, on the 19th of June, 1867, filed his petition in equity in the Louisville chancery court against said Jos. Slater and his wife, Formica Slater, exhibiting the record of said ordinary proceedings, and a deed from George R. Prentice and wife to said Joseph Slater, dated May 8, 1865, conveying to him a house and lot, in the city of Louisville, for the consideration of one thousand six hundred and eighty-seven dollars and fifty cents, recited in the deed to have been paid. He also exhibited and assailed as fraudulent a deed for the same property, dated on the 26th of December, 1865, and made by Slater to his said wife without an intervening trustee, for the expressed considerations of love and affection, and her agreement to assume and pay to said Prentice six hundred dollars, with interest from May 8, 1865 ; for which, it was stipulated in the deed, a lien should exist on the property; and he prayed the court to set aside this deed, and subject the property to the payment of his judgment.
The appellants, in their answers to said petition, controverted the allegations of fraud imputed to them in the execution of the deed to Mrs. Slater; and so far as the same was without valuable consideration, they denied that it was void as to the plaintiff’s claim, because, as they insisted, said claim was not, at the date
The chancellor adjudged that the conveyance was fraudulent and void as to the plaintiff’s claim, and ordered a sale of so much of the property as necessary to pay the judgment at law; and from that judgment Slater and wife have appealed.
The correctness of the judgment at law is questioned by the counsel for the appellants on several grounds.
We do not so regard it. The defendant alleged no new matter in his answer constituting a defense, but simply controverted the allegations of the petition ; and the issue thus formed was no notice to the plaintiff that matter of justification or excuse would be relied on as a defense to the action; and to have permitted such evidence to go to the jury, would have been a manifest disregard' of one of the most important objects of our present system, by which the requisites of pleadings are prescribed, and parties required to state the facts constituting their claims and, defenses for the information of each other. (Denton vs. Logan, 3 Met., 434.)
But it is insisted, that although the issue may not have authorized the admission of the evidence as matter of justification, or excuse, the facts the defendant proposed to prove were, nevertheless, admissible for the purpose of proving provocation by the plaintiff in mitigation of damages. We concede the general principle, that, notwithstanding the rule, that whatever is to be shown in justification must be specially pleaded, the defendant, under the issue in this case, might have relied on any part of the res gestee in mitigation of damages; but this principle does not go further than to admit proof of a
1st. “That in estimating the damages, they arc not confined to the actual outlay of money paid by plaintiff for surgeons and physician’s bills, or loss of time, but may take into consideration the bodily pain and sufferings, and personal disfiguration of the plaintiff, as part of the actual injury, for which the plaintiff i.s entitled to compensation in damages.
2d. “ The jury, in making up their verdict, may give such damages as they think the plaintiff ought to receive for the injury done, without considering what amount the defendant can conveniently pay, or whether he can or will pay anything, but not to exceed the amount claimed in the petition.”
The correctness of these instructions is questioned by the counsel for the appellant, mainly on the ground that they authorized the recovery of vindictive damages for an injury which is also punishable by indictment. Although there is some conflict of authority on the question, it may be regarded as settled in this State, and, as we think, in accordance with principle and the weight of authority, that a plaintiff may recover vindictive or
No error to the prejudice of the appellant is perceived in the judgment of the court of common pleas, and the same is therefore affirmed.
Upon the appeal from the judgment of the chancery court, a brief reference to the facts may suffice to dispense with the consideration of some of the questions of law presented by the counsel, as not applicable to the state of case exhibited by the record.
The allegations of Slater and wife of the existence of a debt to Prentice for a balance of the price of the property, and its payment by Mrs. Slater, presumptively repelled by the recitals of Prentice’s deed, are not sustained by any evidence. The conveyance, therefore, from Slater to his wife, must be. treated as wholly voluntary, and without any valuable consideration. And whether that conveyance is or not void, because made directly from the husband to the wife, and not based on any such consideration as would, under certain circumstances, authorize its enforcement in equity, it seems to us the court properly subjected the property to the plaintiff’s judgment, if the right of action'on which it was founded, and which occurred some four days before the date of the conveyance, was an “ existing liability,” within the meaning of the second section of chapter 40 of the Revised Statutes, whether the conveyance was actually fraudulent or not. Or even if the right of action was not such before judgment as to entitle the plaintiff to occupy the position of a creditor, still the judgment must be sustained, if said conveyance was “ made with the intent to delay, hinder, or defraud creditors, pur
As we construe section 2 of the statute referred to, it did not protect the plaintiff’s claim of .damages, unless he thereby became a creditor, and, technically speaking, he was not a creditor until the recovery of the judgment. (Lillard vs. McGee, 4 Bibb., 165.)
But we are of the opinion, from all the facts and circumstances of this case, that the execution of said conveyance was prompted by a fraudulent design to hinder or defeat the successful prosecution of the plaintiff’s right of action for the wrongs and injuries which Slater had but recently before committed; and the deed being therefore fraudulent, was within the denunciation of the first section of the statute, which is a substantial re-enactment of the 2d section of the act of 1796 (2 M. Sf B., 737), and has been held to embrace subsequent as well as previous creditors. (Lillard vs. McGee, supra; Lowrey vs. Fisher, &c., 2 Bush, 70.)
The judgment of the Louisville chancery court is therefore affirmed.